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‘FDR v. the Constitution’

The justices of the Supreme Court of the United States were soon to arrive at the White House for the final formal dinner of the winter's social season. Upstairs, Franklin Roosevelt gathered with three of his intimates and mixed the martinis or old-fashioneds in his enigmatic proportions. The second-floor study, his favorite room in the presidential mansion, was crammed with books and stacks of papers and well-worn leather seats and paintings of ships under full sail and one of a young Eleanor, his wife. The president loved gossip and reminiscences as respites from the rigors of the day, but tonight's conversation was less frothy than usual. The president's companions, his personal secretary Missy LeHand and his ghost speechwriter (and New York judge) Sam Rosenman and his wife, were all in on the secret that he would spring on the capital — and on the nation — in three more days.

"The time for action with respect to the Supreme Court really cannot be postponed," the president said, "and unpleasant as it is, I think we have to face it."

He pretended to be dreading the dinner, but his friends knew he would enjoy it. They drank a toast to the Supreme Court — as it was and as they hoped it would soon become.

On this cold and clear evening of February 2, 1937, eighty-five guests assembled downstairs to partake in the president's annual dinner for the Supreme Court justices. Woodrow Wilson's widow had accepted the invitation, along with the handsome ex-boxer Gene Tunney and his pretty socialite wife, the congressional barons who regarded the judiciary as their own preserve, a rear admiral, a major general, the Pittsburgh judge who had crusaded against intoxicated drivers — the president had personally added him to the invitation list — and almost a dozen millionaires named by the party treasurer as having helped "financially and in other ways during the recent campaign." These were in addition to seven of the Nine Old Men, as a recent ill-natured best seller had described this evening's guests of honor.

Everyone had gathered in the East Room. Just that morning, Mrs. Roosevelt had announced that the room's elderly draperies of gold damask, which her aunt had chosen when she was the first lady, were soon to be replaced, along with the gold-leafed piano. Charles Evans Hughes, the chief justice, noticed Senator William Borah across the East Boom and strode over. The wavy-haired dean of the Senate, the Lion of Idaho, had a massive forehead, a chiseled face, and a mind of his own. The one-time Shakespearean actor, an unpredictable progressive, preferred the magnificently lost cause to quiet victory. The evening before, he had delivered a nationwide radio speech that defended the Court's independence against the president's recent public criticism. "A great speech," the chief justice told him as they shook hands.

For FDR, the dinner for the justices was almost a necessity. Approaching the fifth year of his tenure, he remained the first president since Andrew Johnson who had lacked the opportunity to nominate a single justice. William Howard Taft, in his single presidential term, had named five, of them, and that was before he joined the bench himself. President Roosevelt had sought to ingratiate himself in private with as many as three or four of the sitting justices, but they had proved immune to his blandishments. This left the annual dinner as his best chance to hobnob with the secluded jurists who had been thwarting his programs.

The president was wheeled into the State Dining Room in his reconfigured kitchen chair, and the chief justice's wife strolled in the place of honor at his side. Just behind them, Charles Evans Hughes escorted Eleanor Roosevelt. Hughes looked like a chief justice, as if Cecil B. DeMille had imagined him for the silver screen, with his piercing gray, eyes, the snowy sweep of his mustache, and his luscious, parted white beard that lent him a chilly dignity concealing his private good cheer.

Tonight he was as jovial as his public nature permitted. He loved his own voice, and he could take forever to get to the point. But he was no longer the human icicle he had seemed to the citizenry in 1916, when he had gone to bed on Election Night thinking he was the president-elect and had awakened to find that Woodrow Wilson had won instead. Later there was much talk of a "new Hughes," a jocular Hughes, one who read Balzac and played golf, though not everyone had gone away convinced. "First, is he human?" a magazine writer who had known Hughes as a youth once asked, and then answered: "Mr. Hughes is unquestionably of human origin."

The eldest justice, eighty-year-old Louis D. Brandeis, and his wife had declined the invitation following their physician's advice — they never ventured out at night — and Harlan Fiske Stone had returned too recently to Washington from his lengthy convalescence in the South. But all of the other justices showed up, even James McReynolds, a rude and caustic conservative who "detested the very name 'Roosevelt,'" according to his law clerk. For George Sutherland, courtly and cultured but equally conservative, this was the only dinner invitation he accepted all year.

The justices joined Roosevelt in the State Dining Room at the horseshoe-shaped table, decorated with red roses, white snapdragons, and maidenhair ferns, and set with the gold-edged china (bearing the Roosevelt coat of arms and the presidential seal) that he and Eleanor had acquired. He waved his cigarette holder as he regaled his listeners with stories and chortled at everyone's wit.

After dinner, once the ladies had retired to the Blue and Green rooms, the men smoked cigars, sipped brandy, and bantered. There was much to discuss. Troops armed with machine guns and bayonets had surrounded General Motors' two Fisher Body factories in Flint, Michigan, where the sit-down strikers vowed to defy a state judge's order to vacate the property. The U.S. Senate was debating at length its policy of neutrality amid the rising tensions of Europe. The stage actress Tallulah Bankhead, who was the House Speaker's daughter, had just announced an extra matinee of Reflected Glory at the National Theater, three blocks from the White House, as a benefit for the thousands of flood victims along the Ohio and Mississippi rivers. The president had asked Congress to accept Andrew Mellon's $50 million collection of art, to be housed in a Roman-domed gallery on the national Mall. A boxing match between the heavyweight champion, James J. Braddock, and the aspirant Joe Louis, the Brown Bomber, seemed assured for Chicago. The only subject apparently off limits was the one on everyone's mind: the Supreme Court itself.

The chief justice chatted and laughed with the president. They had much in common and every reason to get along. Both had been born along the Hudson River and had served as reform-style governors of New York. They called each other "Governor" — a young FDR had crossed party lines to vote for Hughes, a progressive Republican — and though they hailed from different parties, neither was dogmatic about what he believed. Their similarities extended to their shared practice of using all three of their given names. More often than not, the chief justice had found himself agreeing with the president that the Constitution had to be interpreted to fit the needs of the times. Within the quiet confines of the Court, he had applied his diplomatic skills toward just such an end, albeit unproductively to date, as much as anyone could tell.

Their shared experience had not advanced their relationship nearly as far, however, as the president would have liked. During his four years in the governor's mansion in Albany, Roosevelt had consulted on occasion with the state's preeminent jurists about the constitutionality of a bill before it became a law. He was hoping for a similar informality in Washington. There was precedent. James Buchanan, while the president-elect, pushed for a decision on the Dred Scott case and lobbied a northern justice to join the Court's southern majority. After Taft became the only ex-president ever to become the chief justice, he often conferred with President Coolidge and members or his cabinet. FDR, as the president-elect, suggested "the same type of delightful relations" to Justice Benjamin Cardozo, who had served as the chief judge on New York's highest court, and also once or twice to Brandeis, and he had evidently broached the idea with Hughes himself, though the chief justice later denied it. Hughes found himself explaining to Roosevelt that the judiciary was an independent branch of the government and must be treated as one. Inevitably, the other justices learned of the approaches and, liberals and conservatives alike, were horrified, leaving Roosevelt without any real friend on the Court.

Clusters of notables gathered at other tables. Justice Owen J. Roberts sat with Donald Richberg, a friend who had run the National Recovery Administration before its premature death at the Court's hands. Roberts "did not hesitate to rag me," Richberg recounted, about the NRA chief's recent speech to a legal society in Philadelphia, Roberts's hometown, criticizing the justice's controversial opinion that had struck down the New Deal's Agricultural Adjustment Act.

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All evening the president's spirits ran high, no doubt fueled by the secret he was keeping. For nearly two years he had wondered what to do about the Supreme Court. Nothing in the Constitution gave the Court the power to strike down a law, but John Marshall, its third and greatest chief justice, had simply asserted the right of judicial review in 1803, and the Court had been exercising it at plaintiffs' behest ever since — lately, with a vengeance. During the previous two years, the Court toppled pillar after pillar of the New Deal, and more of the president's favorite legislation faced a clear and present danger.

But the few others who were in the know felt uneasy. "I wish this message were over and delivered," Homer Cummings, the attorney general, whispered to Sam Rosenman. "I feel too much like a conspirator."

"I wish it were over too," Rosenman replied.

Jimmy Roosevelt, the president's eldest son, savored the irony. The twenty-nine-year-old had been an insurance executive and the head of a yeast company when his father recently named him, over Eleanor's objections, as one of his three White House assistants. He was to be the confidant that the president had been missing since Louis Howe, his longtime strategist and alter ego, died. "The President had fun with the Justices last night," Jimmy wrote in his diary the next day. "I am wondering how they will like him thirty days from now."

He would not need to wait nearly so long to find out.

Three days later, the president's physician was stationed by the door to the Cabinet Room, in case anyone fainted or skipped a heartbeat. This was meant as a joke, yet the glint of melodrama was deliberate.

The White House stenographers had been summoned at six thirty that Friday morning, February 5, allowing them no time to spread the word. They were put to work typing and then mimeographing the six legal-size pages of the president's message to Congress and the attorney general's six-page cover letter, including the statistical tables. A special cabinet meeting had been called for ten o'clock, instead of the usual two o'clock, on a subject that the cabinet officers had been told was confidential in the extreme. John Nance Garner attended, as usual, unlike most of the vice presidents before him (though President Wilson had first allowed it). Five leaders of Congress, all Democrats, also had been invited. The president had personally telephoned the House Speaker, William Bankhead of Alabama, and the Senate majority leader, Joe Robinson of Arkansas.

Everyone crowded into the low-ceilinged Cabinet Room, which was undecorated save for portraits of Thomas Jefferson, Andrew Jackson, and Woodrow Wilson, the rare heroes of the Democratic Party's pallid past. The Republicans had dominated in Washington since the Civil War, and especially since the 1890s, when hard economic times had made them the majority party. Yet the recent election had produced a potent Democratic majority, one that would dominate the far-flung nation for the next four decades. Factory workers and farmers, Catholics and Jews, big-city political machines, white southerners and the descendants of slaves — they joined in the most disparate coalition imaginable. Black voters, long loyal to the party of Lincoln, had backed Herbert Hoover, the failed Republican, for reelection against Roosevelt in 1932 by even grander majorities than in 1928, despite the Great Depression that had intervened. By 1936, they had come to understand where their true interests lay.

Through the French doors of the Cabinet Boom lay one of the capital's loveliest sights, framed by the massive magnolia tree that Andrew Jackson had planted a century before and, toward the right, the south lawn of the White House, rolling down toward the alabaster obelisk of the Washington Monument. The nation's leaders sat around the table with eight unequal sides, designed so that the president might see everyone at once. They listened as he talked — and talked.

"Delay in the administration of justice is the outstanding defect of our federal judicial system," the president began, and for forty minutes he went on. He read first from the attorney general's cover letter and then from the message he was sending to Congress, which outlined the problems with the judiciary and his plan to fix it — "our plan," as he referred to it, gesturing toward his attorney general, Homer Cummings. Bald and paunchy, a beaked nose on his doughy face, Cummings restrained a smile and twirled his pince-nez with a monocle cord. That his Justice Department had made a name for itself in the public eye had mainly been the doing of his publicity-savvy young subordinate J. Edgar Hoover, the director of the Federal Bureau of Investigation and its famous G-men. Nor did the department's higher profile conceal that Cummings was a political animal, as a three-term mayor (of Stamford, Connecticut), a national Democratic committeeman, a convention keynoter, the party's national chairman for a few harrowing months, a dark-horse candidate for the presidency who had never come close. He had gained his seat in the cabinet after diligently lobbying for it, only because the man originally named had suddenly died.

"Of course, everyone except myself," Cummings boasted to his diary, "was taken completely by surprise." Secretary of Labor Frances Perkins, the first woman ever to join a president's cabinet, told him afterward that he had looked like the cat that swallowed the canary.

The president described the highlights of the message that was to be delivered to Congress at noon. For a while, his listeners were puzzled about what he had in mind. He told them he had ruled out trying for a constitutional amendment that might force the Court's hand — "Give me ten million dollars," he said, "and I can prevent any amendment to the Constitution from being ratified by the necessary number of states" — or seeking legislation to alter judicial procedure, such as requiring agreement from two thirds of the justices to strike down a law. He detailed the judiciary's rising case loads and its overstuffed dockets and the Supreme Court's unwillingness to hear most of the appeals — 87 percent of them — that came its way. He alluded to a recommendation by earlier attorneys general — who, he did not bother to say — that a supplementary judge be appointed for every septuagenarian on the bench who refused to retire.

"The personnel of the federal judiciary is insufficient to meet the business," the president read aloud, then added a flourish of poetry to his legalistic recitation. "Modern complexities call also for a constant infusion of new blood in the courts," he went on. "Little by little, new facts become blurred through old glasses fitted, as it were, for the needs of another generation."